EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

(Pošćić, Martinović, 2020, p. 258). The digital market is interconnected and every market player depends on the other’s actions. Although a dominant position is not prohibited, the undertaking has a special responsibility not to abuse its dominant position. Abuse can take a number of different forms. Article 102 TFEU provides a non-exhaustive list of possible abuses. Unlike Article 101 TFEU, no exemptions are foreseen to Article 102 TFEU. New technologies develop sophisticated algorithms that process a large amount of data. We can imagine a situation where an undertaking has acquired a dominant position by the manipulation of algorithms. This is legal and legitimate for now, even though the dominant position is not a consequence of undertaking’s merit. This relates to the dilemma expressed in the literature. The argument is as follows. One criterion of establishing dominant position relates to the position of economic strength enjoyed by an undertaking, which enables it to prevent effective competition being maintained on a relevant market. A dominant position precludes effective competition, but the dominant position is not sanctioned by itself. Maybe, as Surblytė-Namavičiene suggests, the time is ripe for a “monopolization” type of abuse as it is regulated in the US competition law (Surblytė - Namavičienė, 2020, p. 220 and on). Today undertakings operate in different markets. They accumulate data in one market, gain market power, and possibly try to leverage it to another market. Robertson speaks about data – centric nature of digital ecosystems (Robertson, 2020a, p. 14). We can encounter another scenery where an undertaking does not have a dominant position in the primary market, but has a dominant position regarding the users’ data (Lucchini et al. , 2018, p. 567). The dominant undertaking possessing a large amount of data and refusing to share it with its competitors may qualify as abuse in the form of limiting market and technical development to the prejudice of consumers (Lucchini et al. , 2018, p. 567). According to the European Commission, privacy considerations are part of the consumer welfare standard. It is part of quality reduction assessment. 3.1 Can accumulation of Big Data be considered an essential facility? Another point that is gaining more attention is the so called “portability of data”. Competition regulators pay more and more attention to it. We can easily imagine a situation where a small undertaking cannot access data owned by a dominant undertaking (Chirita 2018, p. 159). Is it possible to invoke Article 102 TFEU in a situation where we want to protect access to data? It is not a novelty. The essential facility doctrine refers to an undertaking in dominant position owning an indispensable facility that has an obligation to grant access to its competitors. A dominant undertaking owns something that other undertakings need access to in order to grant products or services. The first decision dealing with this

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